CHUUK STATE SUPREME COURT
APPELLATE DIVISION
Cite as Sellem v. Maras ,
9 FSM Intrm. 36 (Chuuk. S. Ct. App. 1999)

[9 FSM Intrm. 36]

KEIKO SELLEM et al.,
Appellants,

vs.

SOS MARAS et al.,
Appellees,

vs.
 
MITER Nakayama et al.,
Intervenors.

CIVIL APPEAL NO. 2-95

OPINION

Argued:  December 11, 1998
Decided:  February 1, 1999

BEFORE:
Hon. Yoster Carl, Temporary Presiding Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**
Hon. Ready Johnny, Temporary Justice, Chuuk State Supreme Court***

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Directing Attorney, Micronesian Legal Services Corporation, Weno, Chuuk
***FSM Public Defender, Weno, Chuuk

APPEARANCES:
For the Appellants:     Mr. Hans Wiliander
                                      P.O. Box 389
                                      Weno, Chuuk FM 96942

[9 FSM Intrm. 37]

For the Appellees:      Mr. Julio Akapito
                                      P.O. Box EX
                                      Weno, Chuuk FM 96942

For the Intervenors:     Wesley Simina, Esq.
                                      P.O. Box 94
                                      Weno, Chuuk FM 96942

*    *    *    *

HEADNOTES
Appeal and Certiorari
     Appellees' counsel's motion to continue oral argument because the appellees are unable to pay for a copy of the transcript may be denied when he made the same motion on the same ground during the previous appellate session one year earlier and the other parties oppose any further continuance.  Sellem v. Maras, 9 FSM Intrm. 36, 37-38 (Chk. S. Ct. App. 1999).

Appeal and Certiorari ) Standard of Review
     A review of the trial court's factual findings is done under the clearly erroneous standard.  The appellant has the burden to clearly demonstrate error in the trial court's findings.  The appellant has a very strong burden to overcome because the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnesses' credibility.  The appellate court does not have the same opportunity to view the witnesses and as a result, it must be especially circumspect in reviewing a trial court for clear error.  Sellem v. Maras, 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999).

Civil Procedure ) Pleadings
     When a party requests leave of the court to amend pleadings, leave shall be freely given.  In addition, such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion of any party at any time.  Sellem v. Maras, 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999).

Appeal and Certiorari ) Standard of Review; Evidence ) Expert Opinion
     The appellate court begins its review of trial court rulings by presuming that the trial court's factual findings are correct.  The trial court's grant or refusal to adopt an expert's opinion is a question of fact and factual questions are reviewed by this court under the clearly erroneous standard.  Sellem v. Maras, 9 FSM Intrm. 36, 38 (Chk. S. Ct. App. 1999).

*    *    *    *

COURT'S OPINION
YOSTER CARL, Presiding Justice:
     This is an appeal from a judgment of the Chuuk State Supreme Court Trial Division in an action arising out of a dispute over ownership of tidelands located in the area of Mechitiw Village, Chuuk State.

     During the course of the appellate proceedings, the parties made several motions seeking extensions of time and continuances.  Counsel for Appellees, Sos Maras, et al., filed a written motion

[9 FSM Intrm. 38]

for continuance on the grounds that his clients were unable to make payment for a copy of the transcript of testimony and that he could not adequately prepare for the appeal without a transcript. It is noted in the record of this case that this same motion, on the same grounds, was made during the previous Appellate Session in December, 1997.

     Rule 10, CSSC Rules of Appellate Procedure, places the duty on the Appellant to order and make arrangements with the reporter for payment for the transcript for appeal.  Rule 10(c) and (d) provide a remedy for Appellant in the event no transcript can be made available to him.  Appellants' rights are fully protected by the provisions of Rule 10, supra.

     Counsel for both Appellant and Intervenor stated their opposition during oral argument to any further continuance and Counsel for Appellee failed to appear for oral argument.  There is no merit in Appellee's motion and a continuance until the next session of the Appellate Division is not warranted.

     Counsel for Appellant (Sellem), in his brief and during oral argument, conceded that the only issues as pertains to his client on appeal are issues of fact.  His main contention is that the Trial Judge erred in the conclusion that the area known as Tawanap is a deep channel and not tidelands.

     Thus the only issue necessary to resolve the appeal as pertains to Appellant, Sellem, is whether the evidence is sufficient to support the Trial Judge's findings of fact that the area known as Tawanap is not tideland, but a deep channel.

     This Court has consistently held that a review of the trial court's factual findings is done under the "clearly erroneous" standard.  See Emilios v. Setile, 6 FSM Intrm. 558, 560, 1 CSR 17, 18-19 (Chk. S. Ct. App. 1994), for a discussion of these decisions.  Also, this Court stated in the Emilios case, that the Appellant "has the burden to clearly demonstrate error in the trial court's findings."  This Court further pointed out that the Appellant has a very strong burden to overcome for the reason:  "that the trial court had the opportunity to view the witnesses as they testified and to observe their demeanor before reaching its conclusions as to the witnesses' credibility."  Id. at 560, 1 CSR at 19.

     This court does not have the same opportunity to view the witnesses and as a result, this court must be "especially circumspect" in reviewing a trial court for clear error.  Id.

     Counsel for intervenor poses the same basic argument as does Appellant, Sellem, with two additional grounds.  First, Intervenor contends that the trial court erred in allowing amendments to the complaint.  This argument is easily disposed of by the application of Rule 15(a), CSSC Rules of Civil Procedure, which provides that when a party requests leave of the court to amend pleadings, "leave shall be freely given."  In addition, Subsection (b) provides in part as follows:  "Such amendment of the pleadings as may be necessary to cause them to conform to the evidence . . . may be made upon motion of any party at any time."  See Apweteko v. Paneria, 6 FSM Intrm. 554, 557, 1 CSR 30, 32 (Chk. S. Ct. App. 1994) for an analysis of Rule 15.

     Intervenor's second claim of error committed by the trial court concerns the consideration of the opinions of an expert.  It is appropriate to note here that the Appellate Court begins its review of ruling of the trial court by presuming that the trial court's factual findings are correct.  Cheni v. Ngusun, 6 FSM Intrm. 544, 546, 1 CSR 35, 37 (Chk. S. Ct. App. 1994).

     This court has also held that the trial court's grant or refusal to adopt the opinion of an expert is a question of fact and factual questions are reviewed by this court under the "clearly erroneous" standard.  We are not prepared to conclude that the trial court's rulings in this regard are "clearly erroneous."  See Setik v Sana, 6 FSM Intrm. 549, 552, 1 CSR 24, 27 (Chk. S. Ct. App. 1994).

[9 FSM Intrm. 39]

     The Appellees' motion for continuance is denied and the decision of the Trial Division is affirmed.
                                                                                                                                                                                                                                                                                                           
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